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One of the shibboleths of those following climate change litigation is the idea that new legal theories will be surfaced, fired in the furnace of litigation and then forged as the vehicle for addressing climate change in the courts. The public trust doctrine is being hammered out in that direction.

Last month in Butler v. Brewer an appellate panel in Arizona considered a claim based on the theory that the atmosphere is subject to the public trust doctrine and that, therefore, the State of Arizona was obligated to take steps to address greehnouse gases and combat climate change. Although the court affirmed the trial court’s dismissal of the suit, before reaching that conclusion it specifically rejected Arizona’s argument that greenhouse gas issues are non-justiciable under the doctrine.

Butler is one of a slew of cases and regulatory petitions against the federal and state governments orchestrated by Our Children’s Trust, a public interest organization based in Oregon. We have commented on OCT previously. Its success has not been overwhelming, or even any. Not one court has concluded that a state or the federal government can be compelled to do anything. Yet, if the measure of success is whether one’s theory is more well-formed than previously, and whether one can cite more legal precedent supporting it, then OCT is moving its ball forward. By our count, OCT has positive rulings on its atmospheric trust theory from Texas, New Mexico and now Arizona.

In Butler, the appellant raised only one issue: "[w]hether the [public trust doctrine] in Arizona includes the atmosphere.” The State of Arizona engaged that argument head on: “the Doctrine does not include the atmosphere.” Arizona also raised defenses of displacement, standing, and political question, among others.

The court considered prior Arizona and federal precedent to set forth the scope of the doctrine:

First, that the substance of the Doctrine, including what resources are protected by it, is from the inherent nature of Arizona's status as a sovereign state. Second, that based on separation of powers, the legislature can enact laws which might affect the resources protected by the Doctrine, but is it up the to judiciary to determine whether those laws violate the Doctrine and if there is any remedy. Third, that the constitutional dimension of the Doctrine is based on separation of powers and specific constitutional provisions which would preclude the State from violating the Doctrine, such as the gift clause.

From those principles the court had no difficulty responding to Arizona’s argument that the doctrine did not apply to the atmosphere: “we reject the Defendants' argument that the determinations of what resources are included in the Doctrine and whether the State has violated the Doctrine are non-justiciable.” Further, “While public trust jurisprudence in Arizona has developed in the context of the state's interest in land under its waters, we reject Defendants' argument that such jurisprudence limits the Doctrine to water-related issues.” (Note, however, Presiding Judge Gemmill concurred separately and stated: "the atmosphere is not subject to the public trust doctrine.")

Thus, “For purposes of our analysis, we assume without deciding that the atmosphere is a part of the public trust subject to the Doctrine.” Unfortunately for the appellant, this was as far as the court was willing to go. Appellant did not point to any violation of the Arizona Constitution or statutory law. Such a violation was mandatory for the claim to succeed.

Additionally, in 2010 Arizona’s legislature took strong steps to ensure that the regulation of greenhouse gases remained in its bailiwick, rather than any administrative agency’s. A.R.S. 49-191 provides:

A. Notwithstanding any other law, a state agency established under this title or title 41 shall not adopt or enforce a state or regional program to regulate the emission of greenhouse gas for the purposes of addressing changes in atmospheric temperature without express legislative authorization.

Absent a ruling that A.R.S. 49-191 was unconstitutional, there was no order the court could issue that would be able to implement the relief appellant sought. Accordingly, appellant had no standing.

Rome wasn’t built in a day. The atmospheric public trust doctrine hasn’t been either. But construction continues